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Bangalore District Court
M/S. Nuetech Solar System Pvt Ltd vs Santhosh.P.K S/O Late Kalidar Pattar on 6 May, 2025
KABC030599482023
IN THE COURT OF XXXVIII ADDL. CHIEF JUDICIAL
MAGISTRATE, BENGALURU
~:PRESENT:~
SRI. VEERESH KUMAR C.K. B.A.L, LL.M, CC [Cyber Laws]
XXXVIII ADDL. CHIEF JUDICIAL MAGISTRATE
BENGALURU
C.C. No.33850/2023
Date Of Judgment: 6th day of May, 2025
M/s. Nuetech Solar Systems Pvt. Ltd.
No.5, B.M.Shankarappa
Industrial Estate,
Sunkadakattte,
Magadi Main Road
Vishwaneedam Post
Bengaluru-560 091
Rep. By its Manager HR
Sri.Anjanaiah Murthy.C ....Complainant
(By Shri.Ramesh B.M, Advocate)
----//VERSUS//----
Mr. Santosh P.K
S/o.late Kalikar Pattar, 42 yrs.
r/a.No.208,
Embassy Center
Crescent Road,
Bangalore-560 001. ....Accused
(by Sri. S. Arunachalam, Advocate)
KABC030599482023 Judgment CC No.33850/2023
-: 2:-
:: J U D G M E N T :
:
T
his case emanates from a private complaint filed by thecomplainant alleging that the accused has committed
the offence punishable under section 138 of the Negotiable
Instruments Act, 1881, by issuing a cheque for a sum of
Rs.10,00,000/-, and the same was dishonored.
2. THE BRIEF FACTS;
It is the case of the complainant that complainant is a
private limited company registered under the Indian
Companies Act. It is carrying on the business of
manufacturing, supplying and installation of Renewable
energy devices solar energy systems including the Solar Water
Heating Systems and Solar Photovoltaic devices and power
generating systems. The accused is a consultant for generating
business private and Government projects in Karnataka. The
accused approached the complainant for his consultation
business for generating the business with private and
KABC030599482023 Judgment CC No.33850/2023
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government projects. After discussion with various terms and
conditions, the complainant and accused entered into a
Memorandum of Understanding on 30/08/2022 for generating
business across Karnataka state with private and Government
projects and the said Memorandum of understanding shall be
for a stipulated period of 90 days from the date of MOU. The
accused will develop solar business and get work orders from
the Minority Department in the name of Mysore Sales
International Limited and the complainant would be
empanelled supplier for the same. As per the MOU it was the
responsibility of the accused to get the work order from MSIL
for supply of Solar Roof top system and solar allied products to
the respective department. As per the terms and conditions of
the MOU the accused was supposed to ensure minimum work
order of Rs.5 Crores within fifteen days from the department
concern and also received advance of Rs.10,00,000/- to start
up and generate the business for the work, The complainant
paid the said advance of Rs.10,00,000/- to accused way of
KABC030599482023 Judgment CC No.33850/2023
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RTGS through cheque bearing No.694537 dated 30/08/2022.
Further, after receiving the advance amount, the accused
failed to generate the business to complainant within the
stipulated time. For which the complainant demanded to
return the advance amount. The accused agreed to returned
the same and issued a cheque bearing No.346184 for a sum of
Rs.10,00,000/. Upon the instructions of the accused when
the above said cheque was presented for encashment, same
was returned with an endorsement as ‘funds insufficient’. For
which complainant issued demand notice on 8/11/2023. In-
spite of the service of the same, accused did not come forward
to make payment nor replied to the notice. The accused
intentionally issued the cheque without maintaining sufficient
balance in his bank account in order to cause wrongful loss to
the complainant and thereby committed an offence punishable
u/S.138 of the N.I.Act. Hence, the present complaint.
3. On presentation of the complaint, this Court has
taken cognizance for the offence punishable U/sec. 138 of N.I.
KABC030599482023 Judgment CC No.33850/2023
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Act. The summons was issued to the accused. In pursuance to
the service of summons, the accused has put his appearance
through his Counsel and was enlarged on bail.
4. The complaint copies were furnished to the accused
as per Sec. 207 of Cr. P. C. The plea was recorded under Sec.
251 of Cr.P.C. The accusation was read over to the accused
and to which he has pleaded not guilty and claimed to be
tried.
5. To substantiate the case, the complainant has relied
on sworn statement affidavit as examination-in-chief and
examined Manager as PW.1 and got marked 13 documents as
Exs.P.1 to P.13. He has been cross examined by the accused.
The statement of the accused U/Sec. 313 of Cr.P.C. was
recorded. He has denied all the incriminating circumstances
appearing against him. He has not chosen to lead any defence
evidence but has got marked one document as Ex.D.1 on his
defence.
KABC030599482023 Judgment CC No.33850/2023
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6. Heard the arguments of learned counsel for the
complainant and the accused has not advanced any
arguments. Meticulously perused the available materials on
record.
7. Based on the above materials the points that would
arise for consideration are as follows:
POINTS FOR CONSIDERATION
1. Whether the complainant proves that the
accused has issued a cheque bearing
No.346184 dated 06/10/2023 in favour
of the complainant for the amount of
Rs.10,00,000/- in discharge of legally
enforceable debt and same were
dishonored due to “funds insufficient”
and thereby committed an offence
punishable U/Sec. 138 of N.I. Act ?
2. What order ?
8. The above points are answered as below:
Point No.1: In the AFFIRMATIVE
Point No.2: As per final order for the following:-
::REASONS::
9. On Point No.1: The further narration of the entire
averments of the complaint is desisted in order to avoid the
repetition, as already narrated at the inception.
KABC030599482023 Judgment CC No.33850/2023
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10. It is well settled that whenever complainant alleged
that the accused has committed an offence punishable
U/Sec.138 of N.I. Act, obviously, the complainant has to
establish that there was a legally enforceable debt and to
discharge the said legally enforceable debt, the accused has
issued the cheque and subsequently the said cheque has been
dishonored in the account of the drawer/accused. Keeping in
view of these main and important ingredients of section 138 of
N.I. Act, this Court proceeds to discuss the evidence available
on record.
11. As already been stated above, the complainant has
examined its Manager HR as PW.1. He has filed affidavit in
lieu of his examination in chief U/Sec.145 of N.I. Act
reiterating the entire averments of the complaint and got
marked Ex.P.1 to 13.
12. The Ex.P.1 is the Memorandum of Association and
Articles of Association of Neutech Solar Systems Pvt. Ltd.,
Ex.P.2 is the authorization letter, Ex.P.3 is the cheque bearing
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No.346184 dt. 6/10/2023 for a sum of Rs.10,00,000/-, Ex.P.4
is the Bank Endorsement as “funds insufficient”, Ex.P.5 is the
legal notice, Ex.P.6 is the postal receipt, Ex.P.7 is the tracking
information, Ex.P.8 is the memorandum of understanding,
Ex.P.9 is the bank account statement, Ex.P.10 is the
Whatsapp page screenshort, Ex.P.11 is the Whatsapp chat
transcript, Ex.P.12 and P.13 is the secondary evidence
certificate and affidavit.
12.1. On perusal of Ex.P.3, it is clear that it supports
the stand taken by the complainant herein, Ex.P.4 is the bank
endorsement, which discloses that the aforesaid cheque have
been dishonored for the reasons of ‘funds Insufficient, the
same amounts to dishonour. As per clause (a) of proviso to
Sec.138 of N.I. Act the cheque is to be presented for
encashment within the period of its validity from the date on
which the cheque has been issued. The Ex.P.3 bears the date
6/10/2023 and it was on presented on 10/10/2023, in view of
the same, the present Complaint is within limitation.
KABC030599482023 Judgment CC No.33850/2023
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13. As per clause (b) of proviso to Sec. 138 of N.I. Act,
the complainant is required to issue notice, in writing, to the
drawer/accused making a demand for repayment of the said
cheque amount within 30 days from the date of receipt of
information about the dishonor of the cheque. Ex.P.5 is the
legal notice, Ex.P.6 is the postal receipt, Ex.P.7 is the tracking
information. Thereby, it is found that the complainant has
issued legal notice within 30 days from the date of knowledge
of dishonor of cheque. Thus, the provisions of clause (a) & (b)
of proviso to Sec.138 of N.I. Act have been complied with.
14. As per clause (c) of the proviso to Sec. 138 of N.I.
Act, the drawer/accused is entitled to have 15 days time to
make the payment of the cheque amount. Even after elapse of
15 days time for making payment the accused has not made
payment. Further the clause (b) of Sec. 142 of N.I. Act makes it
clear that the complaint has to be filed within 30 days from
the date of cause of action arose. The endorsement made by
this Court on the complaint reveals that the complainant
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presented the complaint on 19/12/2023. Therefore, this Court
is of the considered opinion that the complainant has
complied all the necessary components which attracts section
138 of N.I. Act. Even the accused has not challenged any of
the mandatory requirements to be complied by the
complainant.
15. As per the Judgment of Hon’ble Supreme in case of
APS FOREX SERVICES PRIVATE LTD., vs. SHAKTI
INTERNATIONAL FASHION LINKERS AND ORS., reported in
[2020] ACR 457 wherein it is held that, once accused has
admitted issuance of cheque which bears his signature, there
is presumption that there exists legally enforceable debt or
liability under Sec.139 of N.I. Act. In the present case the
issuance of the cheque and the signature on the cheque is not
disputed by the accused. The said decision is aptly applicable
for raising presumption in favour of complainant.
16. Therefore, when once it is proved that the cheque
belongs to the accused coupled with proof that the cheque
KABC030599482023 Judgment CC No.33850/2023
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bears the signature of the accused. The presumption must be
that the cheque was issued for a legally enforceable debt or
liability. As this Court holds that the complainant has proved
the execution of Ex.P.3 and P.4. More so, the accused has not
challenged signature on the cheque. Accused has even
admitted his signature on the cheque. As a result, the
presumption U/sec.139 of N.I. Act is drawn in favour of
complainant. Now it is adverted below to the rebuttal of
presumption by the accused.
ANALYSIS AND EVALUATION OF EVIDENCE ON REBUTTAL
OF PRESUMPTION BY THE ACCUSED
17. In order to rebut the presumption the accused has
set up the following defence,
1) there is no legally recoverable debt,
2) there was no business transaction between the complainant
and the accused and as such the accused has not signed on
any MOU involving the complainant,
3) the demand notice is not served on the accused,
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4) the cheque in question was procured for some other
transaction an the same has been misused in the present case.
OF LIABILITY/DEBT.
18. The above defences are taken together. The liability
of the accused stems down based on the memorandum of
understanding entered between the complainant and the
accused and the same has been produced by the complainant
at Ex.P.8. Ex.P.8 is a document titled as Memorandum of
Understanding supposed to be entered in 30/08/2022
between the complainant and accused. It witnesses the
transaction between complainant and accused in regard to
development of complainant business in getting the work from
several departments of the government. As per the said MOU
the accused is functioning as consultant to the complainant in
development of their business. For which the complainant
had paid sum of Rs.10,00,000/- by way of a RTGS cheque
bearing No.694537 on the same date itself. To support the
said aspect the bank statement for having transferred the sum
KABC030599482023 Judgment CC No.33850/2023
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of Rs.10,00,000/-, transferred by way of RTGS on
30/08/2022 in favour of accused is produced at Ex.P.9.
19. The challenge of the accused in regard to the said
MOU at Ex.P.8, which is disclosed by way of a cross
examination that the last page of the MOU does not bear the
signature of the accused. On judicial examination of signature
of the accused on Ex.P.8 and the admitted signature of the
accused on Ex.P.3, i.e., cheque, has semblance. The accused
in order to disprove his signature on Ex.P.8 has not made any
efforts to get the court commissioner appointed to secure
expert opinion in regard to his signature. Nonetheless, the said
defence is too feeble and does not appeal to this court as
perceptible defence against the said tangible and compelling
document. More so, the another aspect which corroborates
Ex.P.8, is transfer of Rs.10,00,000/- as stated in the
document, in the account of the accused as per the bank
statement at Ex.P.9.
KABC030599482023 Judgment CC No.33850/2023
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20. There is no dispute in regard to the transfer of
Rs.10,00,000/- in favour of the accused for business
consultation by the complainant, nor the accused challenged
the same during the trial. The accused as per clause 8 of MOU
has failed to secure business in favour of the complainant and
as a result the agreement came to be ceased. For which, the
accused was liable to repay the sum of Rs.10,00,000/- in
favour of the complainant, which is precisely the liability of the
accused in the present case based on the cheque at Ex.P.3.
21. The notice issued on the accused at Ex.P.5, is duly
served on the accused as per Ex.P.7, the postal tracking
information sheet. Even the said aspect was communicated to
the accused by way of Whatsapp chat. The initially accused
had requested for non encashment of the cheque and he even
had agreed to return the advance amount as per Ex.P.10,
which is the transcript of Whatsapp chat. The said document
is supported with secondary evidence certificate at Ex.P.12
and P.13. The statutory notice u/S.138 of N.I.Act leads to an
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inference that there was merit in the complainant’s version,
apart from raising a probable defence by the accused at the
first instance. A ordinary prudent man would immediately
issue a reply notice alleging his grievances if the demand
notice or the claim is false. Not replying to the notice which is
duly served is fatal to the defence of the accused. Any version
taken during the course of the trial amounts to an after
thought and the same requires to be considered with a pinch
of salt. In this regard the Hon’ble High Court of Karnataka in
case of S. K. Honnappa vs. S. A. Murthy reported in NC : 2024
: KHC: 34108, was pleased to hold that,
“As a corollary to this, in order to hold the
defence version probable the drawer of the
cheque must come out with his defence in his
reply notice, any defence introduced for the
first time either at the time when complainant
or his witnesses are cross-examined or when
he leads evidence does not carry as much
weight as it carries if there was disclosure at
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the earliest point of a time i.e., before the
criminal action is initiated.”
In the present case, the accused lost an opportunity to
present his defence at the first instance when he failed to
issue reply to the duly served notice. In view of the same in the
given set of facts and circumstances the defence of the
accused does not hold much of the weightage.
22. Though the accused takes up stand in the cross-
examination of PW.1 that the cheque in question was issued
for some other purpose/transaction and the same has been
misused by the complainant. When such an defence is taken
by the accused then the entire burden is on the accused to
prove the said aspect. However, the accused merely suggesting
a defence in the cross-examination has not anything
substantial to prove the said defence. As a result the said
defence appears to be taken only for the purpose of defence
and it does not attach any seriousness.
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23. On conjoint reading of the entire materials it is
found that though PW.1 is cross-examined in detail however
there is nothing material could be elicited so as to weaken the
evidence/case of the complainant. The liability comes upto the
cheque amount which is legally recoverable debt of the
complainant. All that is tried is to deny the case of the
complainant and the liability. There is nothing that would
support the defence of the accused in the portion of the cross-
examination of PW.1 nor in her evidence. The defense of the
accused cannot be accepted and it is inconsistent. As a result
the accused has failed to rebut the presumption on the
standard of preponderance of probability as held in the
decision of the Hon’ble Supreme Court reported in 2006 (3)
Crimes 117 (S.C.) between M.S.Narayana Memon @ Mani V/s.
State of Kerala and Another.
24. From the evidence on record, it is clear that the
accused has failed to rebut the presumption, on the other
hand the tenor of cross-examination of PW.1 clearly indicates
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that they have proved the existence of the liability and also
issuance of cheque for discharge of the said liability.
Admittedly the complainant has complied with all
requirements of Section 138 of the N.I. Act. The statutory
notice as required by law had been issued. The version of
complainant is certain and stands proven than the defence of
the accused. Hence, the above point is answered accordingly.
25. ON POINT NO. 2 : In view of the above findings the
accused is found guilty for the offence punishable under
section 138 of N.I. Act. Under the present set of facts and
circumstances of the case, it is just and proper to sentence the
accused to pay fine equivalent to the cheque amount along
with appropriate penalty on the scale of the cheque amount,
as per the directions of Hon’ble Supreme Court in case of H.
Pukhraj vs. D. Parasmal reported in (2015)17 SCC 368, in
regard to imposition of fine amount. Thereby, proceed to pass
the following:
KABC030599482023 Judgment CC No.33850/2023
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:: ORDER ::
• In exercise of Sec. 255 (2) of Cr.P.C., the
accused is convicted for the offence
punishable U/Sec. 138 of N.I. Act and
sentenced to pay fine of Rs.15,00,000/-,
in default of payment of fine the accused
is sentenced to undergo simple
imprisonment for a period of one year.
• Out of fine amount of Rs.15,00,000/-, a
sum of Rs. 14,00,000/- shall be paid to
the complainant as compensation as per
Section 357 (3) of Cr.P.C and the
remaining amount is defrayed to state as
its expenses.
• Office is directed to supply this
Judgment to the accused free of cost.
(Dictated to the Stenographer directly on computer, typed by him, same was
corrected by me then pronounced in the Open Court, on this the 6th day of May, 2025.)
(VEERESH KUMAR C.K.)
XXXVIII ADDL.C.J.M.,
BENGALURU
KABC030599482023 Judgment CC No.33850/2023
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ANNEXURE
1. List of Witnesses examined for Complainant:
PW.1: Sri.Anjanaiah Murthy.C
2. List of Witnesses examined for Defence:
-Nil-
3. List of Documents marked for Complainant:
Ex.P.1 : Memorandum of Association and Articles of
Association of Neutech Solar Systems Pvt. Ltd.
Ex.P.2 : Authorization letter Ex.P.3 : Cheque. Ex.P.4 : Bank endorsement. Ex.P.5 : Legal notice Ex.P.6 : Postal receipt. Ex.P.7 : Tracking Information Ex.P.8 : Memorandum of Understanding. Ex.P.9 : Bank Account Statement Ex.P.10 : Whatsapp page screen shot Ex.P.11 : Whatsapp chat transcript.
Ex.P.12,13 : Secondary evidence certificate & Affidavit.
4. List of Documents marked for Defence:
Ex.D.1 : Visiting Card.
(VEERESH KUMAR C.K.)
XXXVIII ADDL.C.J.M.,
BENGALURU
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